Wis.LIRC ER Decision: Sandoval - March 28, 2000 - Disability discrimination -- diagnosis of TB not sufficient to prove disability - no medical restrictions on release to return to work, no substantial limit on normal functions or major life activity or work; no perceived disability or discrimination because of perceived disability

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

OBDULIO MANZANARES SANDOVAL, Complainant

GREEN BAY RADISSON, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702757, EEOC Case No. 26G971632

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 28, 2000
sandoob.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, formerly employed as a dishwasher for the respondent, a hotel, alleges that he was discriminated against by the respondent on the basis of a disability, tuberculosis. The complainant was employed by the respondent from December 1995 until the termination of his employment on May 8, 1997. Complainant alleges that the respondent failed to accommodate his disability, and that because of his disability he was discriminated against in his terms and conditions of employment and his employment was terminated.

The ALJ dismissed the complainant's claims of discrimination after a hearing. The ALJ determined that the complainant failed to prove that he had a disability (implicitly rejecting his claim that the respondent failed to accommodate his disability), and also determined that the respondent had not perceived the complainant as having a disability. Further, the ALJ determined that there was no reason to believe that the respondent had treated the complainant differently in his terms and conditions of employment, or terminated his employment because of a disability.

Based on a stipulation by the parties that the complainant had tuberculosis and was off work from June 28, 1996 to November 26, 1996 for this condition, the complainant argues that this was sufficient to show that he had a disability. However, the complainant was treated for tuberculosis and released to return to work. There is no evidence that he had any medical restrictions upon his release to return to work. There was no evidence that the complainant had a substantial limitation on life's normal functions or on a major life activity, and, the complainant did not have any difficulty in performing his work duties upon his return to work.

The complainant contends, however, that the respondent perceived him as having a disability, asserting that between February and May 1997 his supervisor, Faiz Abdallahi, "made the gesture of putting his hand over his face and his arm out in front of him to keep me at arms length," which adversely affected his conditions of employment. Further, the complainant asserted that Abdallahi often did this in front of coworkers. However, Abdallahi denied engaging in such conduct, the complainant did not call any coworker to testify in support of his claim about Abdallahi and the ALJ found Abdallahi to be a credible witness.

Further, the complainant apparently contends that because he was called into a meeting with Abdallahi and Mr. Pirsanni, Abdallahi's supervisor, in February 1997, regarding a claim that he was harassing several coworkers, but not given the names of his accusers, that this constituted an adverse employment condition taken because of his disability. There is nothing which indicates any connection between the complainant's prior condition of tuberculosis and the meeting of February 1997, however. The evidence shows that Bev Schoen, the respondent's human resources director, had received a complaint, in writing from several employes, that the complainant was engaging in offensive behavior toward the employes, and that Schoen asked Abdallahi to call the complainant to a meeting. The fact that the names of the complainant's accusers were not disclosed bears no significance since the respondent's policy on sexual harassment is to handle all complaints of alleged sexual harassment in a confidential manner.

Finally, the complainant apparently contends that the termination of his employment was a pretext for discrimination on the basis of disability. There is no reason to believe that the complainant's prior diagnosis of tuberculosis had anything to do with the termination of his employment. The evidence shows that the complainant's employment was terminated because he walked off the job after an argument with Abdallahi for reassigning a coworker who was assisting him to other work. The complainant's work shift ended at 3 p.m. each day. The complainant apparently contends that he had not walked off the job because the employer's records show he punched out at 2:59 p.m. and because although Abdallahi could not find him for a 45 minute period after the argument, Abdallahi could not testify as to whether he was on a bathroom break or on some other duty. This argument fails. The complainant does not contend that he was on a "bathroom break" after his argument with Abdallahi. Moreover, the complainant was not on "some other duty" because Abdallahi had searched for the complainant in his work areas after the argument but was unable to locate him. The complainant had effectively walked off the job by his absence from his work area for a 45 minute period after his argument with Abdallahi.

cc: Thomas S. Burke
Thomas L. Schober

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